Ms Bushra Nizamuddin Ali v. Bank of Baroda & Anr.

Ms Bushra Nizamuddin Ali

…Appellant

…Respondent

Case No: Appeal No. 73/2023

Date of Judgement: 06/12/2023

Judges:

Mr Justice Ashok Menon, Chairperson

For Appellant: Ms Adeeba Khan, Advocate.

For Respondent: None.

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Facts:

Argument by the Appellant:

As a lawful occupant of the premises, the Appellant is entitled to protect her possession as a tenant. The provisions of the SARFAESI Act cannot be misused to thwart the lawful claim of the tenant to continue occupying the property until evicted by due process of law. The Appellant contends that it was not a yearly lease. Rent was paid monthly, for which rent receipts were issued, but sometimes lump sum payments were made. The occupancy since 1970 on such tenancy cannot be ignored merely because there is no registered instrument for the lease.

The right of a tenant is protected under Section 17(4A) of the SARFAESI Act, which states that any person who claims tenancy or leasehold rights upon the secured assets must be protected unless the lease or tenancy has expired or stands determined, or such a lease is contrary to Section 65A of the Transfer of Property Act (T.P. Act). The lease can also be ignored if it is contrary to the terms of the mortgage or is created after the issuance of the notice of default and demand by the bank under Sub-Section 2 of Section 13 of the SARFAESI Act. In the present case, the tenancy dates back to 1970 and was not created after the mortgage. It does not appear to be in contravention of Section 65A of the T.P. Act, as the documents of determination of tenancy produced by the mortgagor landlord (second Respondent) appear to be concocted, created after the demise of the original tenant. Under the circumstances, the subject document has to be ignored. The Appellant appears to have a strong prima facie case protecting her right of tenancy over the property. The mortgage is subject to the tenancy right of the Appellant.

Sections and Laws Referred:

Cases Cited:

No specific cases were cited in the document.

Interim Order:

The court granted an ad-interim stay of the sale of the property in favor of the Appellant. However, it was made clear that the sale can proceed, subject to mentioning the tenancy right of the Appellant. The case was adjourned to 03.01.2024, awaiting the appearance of the Respondent Bank.